The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The constitutional power to regulate "commerce . . . among the several states" continues to serve as a broad catch-all basis for federal authority over intrastate activity. Federal statutes routinely assert federal jurisdiction over run-of-the-mill crimes based upon any connection to interstate commerce, no matter how tenuous. Courts, for their part, have been extremely permissive, allowing federal prosecution on the barest showing of a connection to commerce.
Not all judges are happy with these developments, nor do all judges believe the courts' permissive approach is consistent with recent Supreme Court decisions, including NFIB v. Sebelius. One such judge is Judge Juan Toruella of the U.S. Court of Appeals for the First Circuit. In United States v. Joubert, involving a federal sex crime prosecution, Judge Toruella wrote a separate concurring opinion expressing reservations about the scope of the federal commerce power as it is currently understood and applied in federal court.
Here is what Judge Toruella wrote:
I join the court's opinion in full but write separately to note my disagreement with the state of our Commerce Clause jurisprudence.
It seems counterintuitive that interstate commerce is affected when Joubert purchases a VHS videotape in New Hampshire, records on the VHS videotape in New Hampshire, and neither sells nor attempts to sell the VHS videotape outside of New Hampshire. Indeed, the only argument in support of a connection to interstate commerce is that, in aggregate, this type of behavior has an effect on interstate commerce. This borders on the farcical, as the evidence suggests that the content of the videotape was made exclusively for Joubert's own personal use. Any commonsense understanding of "interstate commerce" excludes the conduct at issue here.
Yet, as the court correctly notes, and Joubert himself concedes, this court and most (if not all) of the other circuits have found this connection perfectly acceptable, and thus constitutional. . . . This "link" to interstate commerce, which is tenuous at best, also effectively gives the federal government unlimited jurisdiction, since there is very little in today's society that, when aggregated, would have no impact on interstate commerce. We have put aside common sense in order to federalize conduct which we believe needs to be punished.
Let there be no doubt: I am in full agreement that the behavior Joubert was convicted of must be punished, and punished harshly. This punishment, however, should be meted out by the state under its plenary police power, and not by the federal government with its limited jurisdictional reach. [FN: This is not a situation where if the federal government did not have jurisdiction, the crime would go unpunished. The investigation began with police in York, Maine, and it continued as a joint state/federal task force. I have little doubt that had the FBI not been involved and had not brought these federal charges, state prosecutors would have brought charges.] . . .
Recent Supreme Court cases suggest a push in this direction. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591 (2012) ("Although the [Commerce] Clause gives Congress authority to legislate . . . , it does not license the exercise of any great substantive and independent power[s] beyond those specifically enumerated. Instead, the Clause is merely a declaration . . . that the means of carrying into execution those [powers] otherwise granted are included in the grant." (second and third alterations in the original) (internal citations and quotation marks omitted)); . . . Given this trend of narrowing the reach of the Commerce Clause, I believe this court should reevaluate its precedents and lead the return to a more faithful reading of the term "interstate commerce."
Will other judges, or the justices, heed Judge Tourrella's call?